Recommendations

Canada should cease involvement in
ACTA.

Canada should indicate interest in
a WIPO treaty on counterfeiting, using a traditional meaning of
counterfeiting (IE: offense against recipient).

Infringements of copyright, patent
and related exclusive rights should be clearly dealt with in
treaties under their proper titles, and not deceptively wrapped up
in unrelated concepts of counterfeiting.

All submission from the 2001 and
2009 Canadian consultations on copyright carried out by the
departments of Industry and Canadian Heritage should be considered
included in any consultation by Foreign Affairs and International
Trade Canada on related issues. Many submissions to these
consultations directly speak to provisions within ACTA, and it seems
inappropriate for representatives from DFAIT to be negotiating a
primarily Copyright treaty without the benefit of these insights.

Discussion

I am very concerned about these
negotiations. I see many indications that some of the parties
involved in promoting this "trade agreement" are not
willing to be honest about their intentions, for fear that it would
be rejected by fully informed citizens and governments.

We start with the title of
"Anti-Counterfeiting Trade Agreement" which highlights a
theme of being opposed to counterfeiting. A simple dictionary
definition of counterfeiting would be "made in imitation so as
to be passed off fraudulently or deceptively as genuine; not genuine;
forged". If looked at correctly, this is an offense against the
recipient of the imitation, making laws against counterfeiting a form
of consumer protection. This is how trademark law was conceived,
although this form of consumer protection has been abused by
trademark holders to become something quite different.

How could anyone be opposed to such a
law as it would protect us from potentially harmful drugs being
passed off as something they are not, or airplane parts which may
never have been tested?

This seemingly positive and minimally
controversial policy is then wrapped around extremely controversial
forms of copyright law. I can see no other reason to do this other
than to try to distract policy makers and the public as to the true
nature of the treaty -- to in effect, try to "pass off
fraudulently or deceptively as genuine" a treaty on copyright as
if it were a treaty on counterfeiting.

The origins of this specific form of
copyright revision are well established. We first saw this publicly
articulated in 1995 as part of the USA's National Information
Infrastructure (NII) Task force. The idea was to lock down
communications technologies such that it would be large corporations,
rather than private citizens/creators, that were ultimately in
control of this technology. The proponents were a laundry list of
incumbent industries that felt threatened by new communications
technologies and the new competing industries that were emerging
along with it. They wanted to do anything they could to shut down or
otherwise cripple these technologies and competitors. The NII
implementation bill did not pass within the united states, and was
policy laundered though WIPO with a watered down version forming the
1996 WIPO Internet treaties.

I see ACTA as yet another unethical
form of policy laundering and forum shopping. Since the 1996 WIPO
treaties there has been a transition within WIPO where the countries
that represent the vast majority of the population of the planet have
started to understand the implications of some of the recent
treaties. They are now pushing for things such as the Development
Agenda and treaties on limitations and exceptions. Given this change
and the highly controversial nature of the 1996 WIPO treaties, it is
more likely that WIPO would forge forward with more balanced
copyright than in the past. Those that want to move to further
cripple technology will have realized that WIPO will no longer be
able to be as easily manipulated as it was in 1996 when so few
understood the benefits of citizen controlled technology.

While I am a strong opponent of the
1996 WIPO treaties and believe that Canada should never ratify
(should instead renegotiate), I expect far better things from WIPO in
the future now that a larger number of country and NGO participants
are informed and engaged.

If this is truly the goal, then the
obvious question is why these negotiations are not happening at WIPO?
The main difference appears to be one of accountability and
transparency given WIPO, as a special agency of the United Nations,
must honor some basic tenants of a democratic process. Everything
about the level of secrecy around the Orwellian double-speak named
ACTA seems to suggest something is very wrong. If this was intended
to be an enforcement agreement then it would not include any new
policy proposals, or make any activities into infringements that were
not already infringements (including not pressuring countries into
ratifying other treaties in any specific way).

In drafting a petition against ACTA
http://www.digital-copyright.ca/petition/acta
I note that "while signing a treaty is to ratification as dating
is to marriage, some parliamentarians believe that signing a treaty
creates an obligation for Canada to ratify". This is why policy
laundering and forum shopping by special interest groups has been so
successful in the past. It is also why governments (including
responsible bureaucrats) should push back against this fundamentally
anti-democratic activity.

Controversial
potential provisions

It should not be surprising that the
section that is most controversial is the one that is most distant
from the concept of "counterfeiting", and that is "Internet
Distribution and Information Technology".

Provisions discussed here come under
two broad categories:

making ISPs liable for copyright
infringement committed by their customers unless they become private
enforcers of copyright

locking down technology such that
it is third parties and not the owner that is able to control the
technology, and allowing copyright holder the new anti-competitive
right to impose brands of technology able to access content

Anti-circumvention

I have dedicated much of my volunteer
time since the summer of 2001 opposing the legalization or legal
protection of the two locks of DRM. I have given many presentations
to the public, politicians and bureaucrats over the years. Rather
than repeat the entire discussion I will point you to
http://flora.ca/own . I am
available to discuss this with bureaucrats at DFAIT if desired. A key
problem is that most of the discussion is based on a form of science
fiction around what the DRM vendors claim their technology does, and
not the science of how it actually works.

I consider the lock on content which
ties access to that content to specific authorized technology to be a
form of "tied selling" which is harmful for all the reasons
Canada correctly includes "tied selling" as an offense
under our Competition Act.

I consider the lock on devices where
someone other than the owner holds the keys to be a form of theft, as
offensive as if we legalized or legally protected home builders who
wanted to continue to manage the keys after a home had been sold.

I believe that these locks should not
only not be legally protected, but legally prohibited.

The following are related points from
my 2009 copyright consultation submission:

Truly
private activities (non-commercial and non-public in nature) should
be carved out of copyright such that they do not require permission
or payment.

Any
hardware assistance for communications, whether it be eyeglasses,
VCR's, or personal computers, must be under the control of the
citizen and not a third party. This should include screen readers
(technology that reads out loud), or any other technology used by
citizens to enhance or augment their senses in order to access
legally acquired copyrighted works. I do not believe that copyright
holders have any legitimate interests in this area, and copyright
should be limited to ensure it never restricts this hardware
assistance. Business models based on a form of "theft"
(third-party control of devices not authorized by owner) should not
be legalized or legally protected.

Do
not extend copyright to include a new "right of
non-interoperability" where authors can encode their content to
only be interoperable with chosen brands of access technology
(technical measures applied to content).

Ensure
that any legal protection for technical measures only extend to
infringing acts , and not simply "unauthorized" acts. This
critical issue was articulated in the 1996 WIPO treaties and the
proposed Liberal Bill C-60. Ideal is if legal protection for
technological measures only modified remedies, and was not
considered at all prior to a court finding of infringement.

Clarify
that any legal protection for technological measures does not extend
to locks applied to devices where the owners are not given the keys
when devices are sold. This business practice should be made clearly
illegal (under other laws).

Clarify
that software is neither a "device" (as interpreted in the
USA with relation to their DMCA) nor a "service" (as could
be misinterpreted in the context of C-60 ), and that there would be
no prohibition over the authoring, distribution or use of software
that had substantial non-infringing uses.

Canada
should not offer copyright protection to computing interfaces, as
described in the European Council Directive 91/250/EEC of 14 May
1991 on the legal protection of computer programs which recognized
the importance of interoperability. We should have explicit limits
and exemptions to disallow copyright to be abused to deny
interoperability, and a positive right to reverse engineer for the
purpose of creating interoperable software.

ISP liability

I believe that the notice-and-notice
regime proposed within Canada strikes the right balance. Ultimately
the individual committing the infringing acts should be liable for
their own infringement, with intermediaries only needing to be
conduits for communication and discovery.

This is what I included in my
submission to the copyright consultation.

Intermediaries
should not be liable when they are simply acting on behalf of their
customers, or providing solutions under the control of customers.
The "notice and notice" regime for ISPs proposed in Bill
C-60 and Bill C-61 should be retained. Authors of software with
non-infringing uses should not be held liable for any abuses of that
software to infringe copyright.

Canada
should not adopt a "graduated response" or "3
strikes" law. The reality is that with excessively high
Statutory Damages that Canada already has a "one proven strike
and you are out" law. What the proponents seem to be asking for
is the ability to receive remedies without having to present any
proof of infringing activities to a judge. This is similar to some
of the "ISP liability" proposals such as "Notice and
Take Down" (AKA: "Claim and Censor") or "notice
and terminate" where alleged copyright holders want to have
material removed without adequate court oversight.

Any
"ISP liability" or "graduated response" law must
hold accusers liable for false accusations of infringing activity,
with far harsher penalties than copyright infringement. A balanced
"graduated response" law would revoke Internet access or
copyright itself for copyright holders that continue to falsely
accuse citizens of copyright infringement.

Some of the suggestions I am hearing in
context of ACTA are, at best, a bad joke such as "3 strikes".
This appears to be a situation where the concept of the punishment
fitting the crime is flipped on its head with the least serious forms
of copyright infringement receiving the most serious penalties.

The reality is that, if we took
graduated response and applied it proportionately to all copyright
infringement, that the proponents of these provisions wouldn't be
around to be lobbying governments at all.

ACTA appears to propose that
non-commercial infringement by average citizens should, after 3
accusations without judicial oversight, require that the citizen (and
their family/etc) no longer be allowed access to the Internet.

At the time I wrote that article a
quick media scan found that Microsoft had been accused of infringing
the copyright of the ImageMaster software, something that was later
confirmed. In this case we should just be calling this "strike
1", but instead Microsoft was allowed to say "oops"
and comply with the license requirements. A quick media scan today
indicates that Microsoft was accused of and has now admitted to
copying code from rival Plurk. This should be considered "strike
2", and under an honest version of a 3 strike law it would take
less than a month for Microsoft as a corporation to not be legally
allowed to have an Internet connection.

The same is true of other proponents of
these provisions, such as the major label recording industry which
recently had possibly the largest copyright infringement case in
Canadian history launched against them relating to the "pending
list". This is far more serious than the mere accusation that
ACTA appears to be contemplating, but a launched lawsuit.

It should be obvious that more serious
offenses should receive more serious punishment. Commercial
infringement by commercial entities are orders of magnitude more
serious than non-commercial infringement by citizens. I also believe
that a court proven cases or where the accused has admitted their
guilt are far more serious than mere accusations. A fair and balanced
law that revokes Internet access from private citizens for
non-commercial infringement would be contemplating revoking corporate
charters for proven commercial infringement.

Please don't misinterpret: I don't
think you should be creating a treaty that would likely within a year
of its coming into force cause the revoking of the corporate charters
of the members of the so-called International Intellectual Property
Alliance (IIPA). What I am suggesting is that no country should be
taking "3 strikes" style proposals seriously, and should be
rejecting them out of hand.